Law & Inequality: A Journal of Theory and Practice
Volume 35 | Issue 1
Article 4
2017
Selma to Selma: Modern Day Voter Discrimination
in Alabama
Amy Erickson
Follow this and additional works at: http://scholarship.law.umn.edu/lawineq
Recommended Citation
Amy Erickson, Selma to Selma: Modern Day Voter Discrimination in Alabama, 35 Law & Ineq. 75 (2017).
Available at: http://scholarship.law.umn.edu/lawineq/vol35/iss1/4
Law & Inequality: A Journal of Theory and Practice is published by the
University of Minnesota Libraries Publishing.
75
Selma to Selma: Modern Day Voter
Discrimination in Alabama
Amy Erickson†
[A]ll types of conniving methods are still being used to prevent
Negroes from becoming registered voters. The denial of this
sacred right is a tragic betrayal of the highest mandates of our
democratic tradition. And so our most urgent request to the
[P]resident of the United States and every member of
Congress is to give us the right to vote.
Give us the ballot, and we will no longer have to worry the
federal government about our basic rights. — Martin Luther
King, Jr., May 17, 19571
Alabama’s long and regretful history of racial discrimination
begins, and does not end, in Selma, Alabama. The home of the
modern day voting rights movement is also home to one of the
country’s most stringent voting laws.2 Passed by the Alabama
Legislature in 2011, House Bill 19 requires voters to present
photographic identification before casting a ballot,3 and is
estimated to disenfranchise between 250,000 and 500,000 voters.4
†. J.D. Candidate, University of Minnesota Law School, 2017; B.A. Gustavus
Adolphus College, 2009. Amy would like to thank the staff and editors of Law &
Inequality: A Journal of Theory and Practice, especially Executive Editor Bojan
Manojlovic, for all of their help preparing this Article for publication. Amy would
also like to thank her family and her partner, David Archer, for their continued
advice and support.
1. Martin Luther King, Jr., Address at the Prayer Pilgrimage for Freedom
(May 17, 1957) (transcript available at http://kingencyclopedia.stanford.edu/
encyclopedia/documentsentry/doc_give_us_the_ballot_address_at_the_prayer_pilgri
mage_for_freedom/).
2. Compare ALA. CODE § 17-9-30 (2011) (requiring that voters, with very few
exceptions, present a government-issued photo ID at the polls), with Wendy
Underhill, Voter Identification Requirements: Voter ID Laws, NAT’L CONFERENCE
OF STATE LEGISLATURES (Sept. 26, 2016), http://www.ncsl.org/research/electionsand-campaigns/voter-id.aspx (noting that 18 states do not require voters to present
photo IDs at the polls, but instead use other methods to verify the identity of
voters).
3. § 17-9-30.
4. BEN JEALOUS & RYAN P. HAYGOOD, CTR. FOR AM. PROGRESS ET AL., THE
BATTLE TO PROTECT THE VOTE: VOTER SUPPRESSION EFFORTS IN FIVE STATES AND
THEIR EFFECT ON THE 2014 MIDTERM ELECTIONS 8 (2014), https://cdn.american
progress.org/wp-content/uploads/2014/12/VoterSupression-report-Dec2014.pdf.
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Because of its history of racial discrimination, the State of
Alabama was subject to federal preclearance5 from the passage of
the Voting Rights Act in 1965 until the Supreme Court handed
down its decision in Shelby County v. Holder on June 25, 2013.6
Under the federal preclearance requirements, prior to 2013,
Alabama was required to seek federal approval before
implementing any changes to its voting practices or procedures to
ensure that the changes would not have a discriminatory effect on
minority voters.7
After passing House Bill 19 in 2011, the State delayed
implementation of the legislation pending the Supreme Court’s
decision in Shelby County.8 Then, just days after the Supreme
Court struck down Section 4 of the Voting Rights Act, eliminating
the federal preclearance requirement, the law went into effect.9
Moreover, not long after implementing the bill, the State
announced that it would close thirty-one driver’s license-issuing
offices, many of which were located in predominantly Black
counties.10 In response, Greater Birmingham Ministries and the
Alabama chapter of the NAACP filed a lawsuit on December 2,
2015, alleging that the Alabama voter ID law violates Section 2 of
the Voting Rights Act, and the Fourteenth and Fifteenth
5. 52 U.S.C. § 10303(b) (2006), invalidated by Shelby Cty. v. Holder, 133 S. Ct.
2611, 2631 (2013). Preclearance is the requirement that jurisdictions covered by
the Voting Rights Act seek federal approval from the United States Attorney
General or U.S. District Court for the District of Columbia before implementing a
change in voting practices or procedures. Brian L. Porto, Annotation, What
Changes in Voting Practices or Procedures Must Be Precleared Under § 5 of Voting
Rights Act of 1965 (42 U.S.C.A. § 1973c)—Supreme Court Cases, 146 A.L.R. FED.
619, 619 (1998).
6. 133 S. Ct. 2612 (2013).
7. Jurisdictions Previously Covered by Section 5, U.S. DEP’T OF JUSTICE (Aug.
6, 2015), https://www.justice.gov/crt/jurisdictions-previously-covered-section-5; see
also 52 U.S.C. § 10303(b) (2006), invalidated by Shelby Cty., 133 S. Ct. at 2631.
8. NAACP LEGAL DEF. & EDUC. FUND, INC., BACKGROUND ON ALABAMA’S
DISCRIMINATORY PHOTO VOTER ID LAW: GREATER BIRMINGHAM MINISTRIES V.
ALABAMA 2, http://www.naacpldf.org/files/case_issue/Greater%20Birmingham%20
Ministries%20v.%20Alabama%20Backgrounder.pdf.
9. See Bob Johnson, Alabama Officials Say Voter ID Law Can Take Effect,
THE GADSDEN TIMES (Jun. 26, 2013, 12:01 AM), http://www.gadsdentimes.com/
article/20130626/wire/130629842 (“[T]he Supreme Court’s ruling on Monday
throwing out part of the federal Voting Rights Act means the state does not have to
submit for preclearance a new law requiring voters to show photo identification.
[Alabama Attorney General] Strange said the voter identification law will be
implemented immediately.”).
10. Ari Berman, Alabama, Birthplace of the Voting Rights Act, Is Once Again
Gutting Voting Rights, THE NATION (Oct. 1, 2015), http://www.thenation.com/
article/alabama-birthplace-of-voting-rights-act-once-again-gutting-voting-rights/.
2016]
Selma to Selma
77
Amendments to the United States Constitution.11
Plaintiffs
alleged that the law not only has a disproportionate effect on the
ability of minority voters to elect candidates of their choice, but
was also motivated by that discriminatory purpose.12
The United States District Court for the Northern District of
Alabama should act quickly in resolving this issue. Specifically,
the court should grant the requested relief: a declaratory judgment
that Alabama’s voter ID law is a violation of Section 2 of the
Voting Rights Act, and should issue a permanent injunction on its
enforcement.13 Although Alabama is no longer subject to federal
preclearance, its history of racial discrimination has not been
erased. Thus, the court should consider Alabama’s past and
recent history of racial discrimination in striking down the voter
ID law as a violation of Section 2’s prohibition on voting practices
and procedures that deny or infringe the right to vote on account
of race or color.
Part I of this Note discusses the history of racial
discrimination in voting practices and procedures in Alabama that
led to the passage of the 1965 Voting Rights Act. Part II provides
an overview of the Voting Rights Act and relevant precedent, and
discusses the history and current status of federal preclearance
under Sections 4 and 5, as well as the prohibition on voter
discrimination outlined in Section 2. Next, Part III describes
Alabama’s voter ID law. Part IV analyzes the current case
challenging the voter ID law under Section 2 of the Voting Rights
Act. Finally, Part V argues that the Alabama District Court
currently considering the validity of Alabama’s voter ID law
should strike down the law as a violation of Section 2 of the Voting
Rights Act.
I.
Background
In the aftermath of the Civil War, the Thirteenth,14
Fourteenth,15 and Fifteenth Amendments16 were ratified to
11. Complaint at 5, Greater Birmingham Ministries v. Alabama, No. 2:15-cv02193-LSC (N.D. Ala. Dec. 2, 2015).
12. Id. at 5.
13. Id. at 66–67.
14. U.S. CONST. amend. XIII, § 1 (“Neither slavery nor involuntary
servitude . . . shall exist within the United States . . . .”).
15. U.S. CONST. amend XIV, § 1 (“All persons born or naturalized in the United
States . . . are citizens of the United States and of the State wherein they reside.
No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
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safeguard the rights of recently emancipated slaves.17
The
Fifteenth Amendment declares that, “The right of citizens of the
United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous
condition of servitude.”18 Furthermore, Congress was given the
power to protect the rights guaranteed by these so-called Civil
War Amendments through the passage of appropriate
legislation.19 Nonetheless, in the years following the Civil War,
efforts to disenfranchise Black voters continued throughout the
states in the form of poll taxes, literacy tests, and acts of violence
perpetrated by white supremacist groups.20 The history of racial
discrimination in the years following the Civil War was especially
prominent in the South, and the 1901 Alabama Constitution is a
stark example of nationwide attempts to legally disenfranchise
Black voters.21
At the 1901 Constitutional Convention, there were 155
delegates; all of them were White.22 In an opening address, the
president of the convention made clear that the constitution’s
purpose was to establish white supremacy by force of law.23 The
within its jurisdiction equal protection of the laws.”).
16. U.S. CONST. amend XV, § 1.
17. GARY MAY, BENDING TOWARDS JUSTICE: THE VOTING RIGHTS ACT AND THE
TRANSFORMATION OF AMERICAN DEMOCRACY xi (2013).
18. U.S. CONST. amend XV, § 1.
19. U.S. CONST. amend. XIII, § 2; U.S. CONST. amend. XIV, § 5; U.S. CONST.
amend. XV, § 2.
20. MAY, supra note 17, at ix (“[F]or an African American living in the Deep
South in the 1960s . . . [voting] was a forbidden act, a dangerous act. There were
nearly impossible obstacles to overcome: poll taxes, literacy tests, and hostile
registrars. If a person succeeded and was allowed to vote, his name was published
in the local newspaper, alerting his employers and others equally determined to
stop him. The black men and women who dared to vote lost their jobs, their homes,
and, often, their lives.”).
21. See Wayne Flynt, Alabama’s Shame: The Historical Origins of the 1901
Constitution, 53 ALA. L. REV. 67, 70–71 (2001) (discussing the white supremacists’
social and political movement aimed at solidifying the purported inferiority of
African Americans in Alabama through violence, legal disenfranchisement, and
promotion of new “scientific” theories such as survival of the fittest and eugenics
that led up to the 1901 constitutional convention).
22. MALCOLM COOK MCMILLAN, CONSTITUTIONAL DEVELOPMENT IN ALABAMA,
1798–1901: A STUDY IN POLITICS, THE NEGRO, AND SECTIONALISM 263 (Fletcher M.
Green et al. eds., 1955).
23. JOURNAL OF THE PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF
THE STATE OF ALABAMA, COMMENCING MAY 21, 1901, at 12 (1901) (“[I]t is[] within
the limits imposed by the Federal Constitution[] to establish white supremacy in
this State.”); see also Flynt, supra note 21, at 71 (discussing Convention President
John B. Knox’s opening address at the 1901 Constitutional Convention and noting
that it was well understood by delegates that the central purpose of the Convention
was to establish white supremacy by force of law).
2016]
Selma to Selma
79
delegates looked to Louisiana, Mississippi, North Carolina, and
South Carolina as pioneers in the disenfranchisement movement,
as each of these states had passed constitutional amendments
requiring poll taxes, literacy tests, or property ownership as a
prerequisite to voting.24 Out of the Alabama Constitutional
Convention came recommendations to implement the following as
prerequisites to the right to vote: a poll tax of $1.50 per year;
passage of an English literacy test; and ownership of either forty
acres of property or property valued at $300. All of these
measures proved to have a disproportionate impact on the ability
of African Americans to cast ballots.25 Each of these proposed
prerequisites were ratified in the 1901 Alabama Constitution.26
The consequences of ratification were stark. Before ratification
there were 181,000 registered Black male voters, and postratification that number dropped to fewer than 5,000.27
Remarkably, the 1901 constitutional provisions limiting the voting
rights of Black citizens remained on the books in Alabama until
1996, when they were finally repealed by constitutional
amendment.28
In
addition
to
the
aforementioned
constitutional
amendments, state and local governments throughout the country
implemented Jim Crow laws enforcing racial segregation.29
Disenfranchisement across the United States gave rise to the Civil
Rights movement of the 1960s, at the center of which was Selma,
Alabama.30 In the early 1960s, members of the Dallas County
Voters League and Student Nonviolent Coordinating Committee
24. JOURNAL OF THE PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF
THE STATE OF ALABAMA, COMMENCING May 21, 1901, at 13–14 (1901).
25. Flynt, supra note 21, at 73.
26. ALA. CONST. Art. VIII, § 194, amended by ALA. CONST. amend. No. 579
(1996) (“The poll tax mentioned in this article shall be one dollar and fifty cents.”);
ALA. CONST. Art. VIII, § 181, amended by ALA. CONST. amend. No. 579 (1996)
(“[T]he following persons, and no others . . . shall be qualified to register as
electors[:] [t]hose who can read and write any article of the Constitution of the
United States in the English language . . . [and] [t]he owner . . . of forty acres of
land . . . or . . . of real estate situate in this state, assessed for taxation at the value
of three hundred dollars or more.”).
27. Flynt, supra note 21, at 75.
28. ALA. CONST. amend No. 579 (1996).
29. MAY, supra note 17, at 6 (noting that “[i]n the twentieth century a different
kind of slavery existed for Selma’s black residents” in the form of Jim Crow laws);
Lolita Buckner Inniss, A Critical Legal Rhetoric Approach to In Re AfricanAmerican Slave Descendants Litigation, 24 ST. JOHN’S J. LEGAL COMMENTARY 649,
684 (2010) (“Jim Crow laws were a series of laws enacted mostly in the Southern
United States in the latter half of the nineteenth century that restricted most of
the new privileges granted to [B]lacks after the Civil War.”).
30. See MAY, supra note 17, at 6–7.
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began staging protests and organizing voter registration drives
aimed at ensuring Black Alabama citizens the right to vote.31
Activists faced strong resistance from authorities in Selma, and
received no support from the federal government.32 On January 2,
1965, Martin Luther King, Jr. addressed a crowd in Selma,
Alabama saying,
Today marks the beginning of a determined, organized,
mobilized campaign to get the right to vote everywhere in
Alabama. If we are refused, we will appeal to Governor
George Wallace. If he refuses to listen, we will appeal to the
legislature.
If they don’t listen, we will appeal to the
conscience of the Congress in another dramatic march on
Washington . . . . Our cry to the state of Alabama is a simple
one, “Give us the ballot!”33
King’s rallying cry gave rise to what would be known as
Bloody Sunday. On March 7, 1965, Alabama State Troopers and
local police beat nonviolent protesters—and injured more than
fifty—as they attempted to cross the Edmund Pettus Bridge to
march from Selma to Montgomery in support of their voting
rights.34
That evening, images of the horrific events were
broadcast across the country and over the next several days,
thousands of supporters flooded into Selma to stand side-by-side
with the protesters.35
Meanwhile, President Lyndon B. Johnson was working with
his staff to finalize the Voting Rights Act.36 In the aftermath of
Bloody Sunday, attorneys at the Department of Justice concluded
that any new law aimed at protecting voting rights must have the
force of the federal government behind it.37 Just over a week after
those events, President Johnson appealed to Congress to ensure
that no American would continue to be denied the right to vote.38
31. Id. at 31–35.
32. Id.
33. Id. at 54.
34. Id. at 85–90; see also March 7, 1965—Civil Rights Marchers Attacked in
Selma, N.Y. TIMES: THE LEARNING NETWORK (Mar. 7, 2012, 4:07 AM),
http://learning.blogs.nytimes.com/2012/03/07/march-7-1965-civil-rights-marchersattacked-in-selma/?_r=0.
35. MAY, supra note 17, at 92–93.
36. Id. at 95.
37. U.S. COMM’N ON CIVIL RIGHTS, POLITICAL PARTICIPATION 11 (1968) (“The
Voting Rights Act of 1965 departed from the pattern set by the 1957, 1960, and
1964 Acts in that it provided for direct Federal action . . . .”); see also MAY, supra
note 17, at 95.
38. President Lyndon B. Johnson, Special Message to Congress: The American
Promise, Speech Before a Joint Session of Congress (Mar. 15, 1965), in 1 PUBLIC
PAPERS OF THE PRESIDENTS OF THE UNITED STATES: LYNDON B. JOHNSON,
CONTAINING THE PUBLIC MESSAGES, SPEECHES AND STATEMENTS OF THE
2016]
Selma to Selma
81
President Johnson pleaded with state policymakers, “Open your
polling places to all your people. Allow men and women to register
and vote whatever the color of their skin.”39 Following his speech,
President Johnson issued an executive order authorizing use of
the Alabama National Guard, military police, and army troops to
protect protesters in Selma.40 On March 21, 1965, with the
National Guard protecting them, about 8,000 protesters left Selma
for a five-day march to Montgomery.41 As the protesters reached
Montgomery, Martin Luther King, Jr. addressed the crowd, calling
once again for an end to racial injustice and access to the ballot
box for all Americans.42 On August 6, 1965, President Johnson
signed the Voting Rights Act into law, with the promise of finally
giving Black Americans full access to the ballot box.43
II. The Voting Rights Act of 1965
The Voting Rights Act was passed in 1965 to ensure that
minorities, particularly Black Americans, would not be denied the
right to vote on account of their race.44 At its passage, the Voting
Rights Act had two primary provisions: Section 5,45 which
PRESIDENT 1965, at 286 (1965) (“Because all Americans just must have the right to
vote. And we are going to give them that right. All Americans must have the
privileges of citizenship regardless of race. And they are going to have those
privileges of citizenship regardless of race.”).
39. Id.
40. Exec. Order No. 11207, 29 Fed. Reg. 3743 (Mar. 20, 1965); see also Rick
Harmon, Timeline: The Selma-to-Montgomery Marches, USATODAY, (March 6,
2015, 8:42 AM), http://www.usatoday.com/story/news/nation/2015/03/05/blackhistory-bloody-sunday-timeline/24463923/.
41. Harmon, supra note 40.
42. Martin Luther King, Jr., Address at the Conclusion of the Selma to
Montgomery March (Mar. 25, 1965), (transcript available at http://
kingencyclopedia.stanford.edu/encyclopedia/documentsentry/doc_address_at_the_co
nclusion_of_selma_march.1.html) (“Let us march on segregated housing until every
ghetto or social and economic depression dissolves, and Negroes and [W]hites live
side by side in decent, safe, and sanitary housing. Let us march on segregated
schools until every vestige of segregated and inferior education becomes a thing of
the past, and Negroes and [W]hites study side-by-side in the socially-healing
context of the classroom . . . . Let us march on ballot boxes, march on ballot boxes
until race-baiters disappear from the political arena.”).
43. Harmon, supra note 40.
44. President Lyndon B. Johnson, Remarks in the Capitol Rotunda at the
Signing of the Voting Rights Act (Aug. 6, 1965), in 2 PUBLIC PAPERS OF THE
PRESIDENTS OF THE UNITED STATES: LYNDON B. JOHNSON, CONTAINING THE PUBLIC
MESSAGES, SPEECHES AND STATEMENTS OF THE PRESIDENT 1965, at 840–41 (1965)
(“Millions of Americans are denied the right to vote because of their color. This law
will ensure them the right to vote.”).
45. 52 U.S.C. § 10304 (2006).
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operated in tandem with Section 4,46 and Section 2.47 Section 5 of
the Voting Rights Act was enacted to prevent jurisdictions with a
history of racial discrimination from implementing new voting
practices unless the Department of Justice determined that the
proposed practice would not deny or infringe voting rights on
account of race, color, or membership in a language minority
group.48 Section 2 of the Voting Rights Act, which closely mirrors
the language of the Fifteenth Amendment, prohibits all
jurisdictions from adopting any voting practice or procedure that
restricts or denies the right to vote on account of those same
characteristics.49 Although Sections 4 and 5 of the Voting Rights
Act were enacted as temporary remedies to the especially
prominent discrimination Black voters faced in certain
jurisdictions,50 Section 2 was enacted as a permanent ban on voter
discrimination.51 Since the Voting Rights Act was originally
passed in 1965, it has been amended four times52 and has been the
subject of much litigation.53
The remainder of this section
discusses the legislative and legal history of Sections 4 and 5, as
well as Section 2.
A. Sections 4 and 5 of the Voting Rights Act: Jurisdictions
46. 52 U.S.C. § 10303(b) (2006), invalidated by Shelby Cty. v. Holder, 133 S. Ct.
2612 (2013).
47. 52 U.S.C. § 10301 (2014).
48. About Section 5 of the Voting Rights Act, U.S. DEP’T OF JUSTICE (Aug. 8,
2015), http://www.justice.gov /crt/about-section-5-voting-rights-act.
49. Compare 52 U.S.C. § 10301(a) (2014) (“No voting qualification or
prerequisite to voting or standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner which results in a denial
or abridgement of the right of any citizen of the United States to vote on account of
race or color . . . .”), with U.S. CONST. amend XV, § 1 (“The right of citizens of the
United States to vote shall not be denied or abridged by the United States or by
any state on account of race, color, or previous condition of servitude.”).
50. Section 4 of the Voting Rights Act, U.S. DEP’T OF JUSTICE (Aug. 8, 2015),
https://www.justice.gov/crt/section-4-voting-rights-act (noting that the formula for
coverage was initially set to expire in 1970).
51. Section 2 of the Voting Rights Act, U.S. DEP’T OF JUSTICE (Aug. 8, 2015),
https://www.justice.gov/crt/section-2-voting-rights-act (“Section 2 is permanent and
has no expiration date . . . .”).
52. Congress amended the Voting Rights Act in 1970, 1975, 1982, and 2006.
History of Federal Voting Rights Laws, U.S. DEP’T OF JUSTICE (Aug. 8, 2015),
http://www.justice.gov/crt/history-federal-voting-rights-laws.
53. E.g. Shelby Cty. v. Holder, 133 S. Ct. 2612 (2013) (invalidating Section 4 of
the Voting Rights Act); United States v. Sandoval Cty., 797 F. Supp. 2d 1249 (D.
N.M. 2011) (holding that continued federal supervision of voting practices and
procedures in Sandoval County, New Mexico was warranted under the Voting
Rights Act); United States v. Alamosa Cty., 306 F. Supp. 2d 1016 (D. Colo. 2004)
(holding that the County’s practice of electing commissioners at large was not a
violation of the Voting Rights Act).
2016]
Selma to Selma
83
Subject to Preclearance
At the passage of the Voting Rights Act, Congress was
especially concerned about cracking down on jurisdictions that had
a history of discriminating on the basis of race in their voting
practices and procedures.54 Thus, Section 5 required jurisdictions
subject to preclearance to seek approval—either through
administrative review by the Attorney General or via a lawsuit
filed in the United States District Court for the District of
Columbia—before implementing a change to its voting practices or
procedures.55 In seeking permission to adopt the proposed change,
the state or political subdivision needed to prove that the
modification would not have the purpose or effect of inhibiting the
right to vote on account of race or color.56 Section 4 of the Voting
Rights Act established the formula used to determine which
jurisdictions are covered under Section 5 of the Act.57
Under Section 4, a jurisdiction was subject to federal
preclearance if the following elements were established: (1) on
November 1, 1964, the State or political subdivision maintained a
“test or device” that restricted the right to vote; and (2) the
Director of the Census determined that, on that same date, less
than fifty percent of eligible voters were registered or less than
fifty percent of voters cast a ballot in the 1964 presidential
election.58 In 1965, seven states, including Alabama, were covered
in their entirety.59 A state or political subdivision that wished to
no longer be covered by Section 4 of the Act was required to
“bailout”60 through a declaratory judgment from a three-judge
panel in the United States District Court for the District of
Columbia.61 In addition, the state or political subdivision had to
demonstrate that, among other requirements,62 it has not been
54. Section 4 of the Voting Rights Act, supra note 50.
55. 52 U.S.C. § 10304(a) (2006).
56. 52 U.S.C. § 10304(b) (2006).
57. 52 U.S.C. § 10303(b) (2006), invalidated by Shelby Cty. v. Holder, 133 S. Ct.
2612 (2013).
58. Id.
59. Section 4 of the Voting Rights Act, supra note 50.
60. Id. (“Section 4 . . . provides that a jurisdiction may terminate or ‘bailout’
from coverage under the Act’s special provisions.”).
61. 52 U.S.C. § 10303(a) (2006).
62. Other factors considered were: (1) whether federal examiners had been
assigned; (2) whether all changes in voting practices and procedures were reviewed
under Section 5; (3) whether any proposed changes were denied by the Attorney
General or District Court of the District of Columbia; and (4) whether there had
been any violations of the Constitution, federal, or state law with respect to voting
practices and procedures. See 52 U.S.C. § 10303(a)(1)(C)–(F) (2006).
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subject to allegations of voter discrimination, received an adverse
judgment in a lawsuit alleging voter discrimination, or used any
test or device with the purpose or effect of discriminating in voting
practices or procedures.63
Section 4 of the Voting Rights Act was set to expire five years
after its passage, but Congress reauthorized the provisions in
1970, 1975,64 1982,65 and 2006,66 determining that there was still a
need for these provisions. When Congress reauthorized the Voting
Rights Act for the final time in 2006, it discussed the progress that
had been made thus far and emphasized that “without the
continuation of the Voting Rights Act of 1965 protections, racial
and language minority citizens will be deprived of the opportunity
to exercise the right to vote, or will have their votes diluted,
undermining the significant gains made by minorities in the last
40 years.”67
In Shelby County v. Holder, however, the Supreme Court
struck down Section 4 of the Voting Rights Act, reasoning that
states should have broad authority to implement policy without
interference from the federal government.68 In so holding, the
Supreme Court overruled a series of cases in which it had
previously held that the Voting Rights Act did not exceed
Congressional authority to enforce the Fifteenth Amendment.69 In
addition, after the 2006 reauthorization of the Voting Rights Act, a
63. 52 U.S.C. § 10303(a)(1)(A)–(B) (2006).
64. The 1975 amendments broadened coverage to include voting discrimination
against members of a language minority group. Section 4 of the Voting Rights Act,
supra note 50.
65. Id. (noting that the 1982 amendments to the Voting Rights Act extended
the coverage formula for an additional 25 years without making any changes).
66. H.R. REP. NO. 109-478, at 2 (2006) (“The continued evidence of racially
polarized voting in each of the jurisdictions covered by the expiring
provisions . . . demonstrates that racial and language minorities remain politically
vulnerable, warranting the continued protection of the Voting Rights Act of 1965.”).
67. Id. at 2.
68. 133 S. Ct. 2612, 2623 (2013) (“Outside the strictures of the Supremacy
Clause, States retain broad autonomy in structuring their governments and
pursuing legislative objectives.”).
69. E.g. Lopez v. Monterey Cty., 525 U.S. 266, 269, 294 (1999) (holding that
Monterey County, California’s effort to implement voting changes was covered
under Section 5 and that preclearance requirements do not unconstitutionally
violate state sovereignty); Rome v. United States, 446 U.S. 156, 177–78 (1980)
(holding that Congress did not intend for voting practices to be precleared unless
discriminatory purpose and effect were absent); Georgia v. United States, 411 U.S.
526, 531 (1973) (holding that “reorganization of voting districts and creation of
multimember districts in place of single member districts” required administrative
or judicial approval); South Carolina v. Katzenbach, 383 U.S. 301, 337 (1966)
(holding that Sections 4 and 5, were “a valid means for carrying out the commands
of the Fifteenth Amendment”).
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85
Texas jurisdiction subject to preclearance filed suit seeking to
bailout from the Act or, in the alternative, to challenge the Act’s
constitutionality.70
Although the Supreme Court expressed
serious concerns about the validity of Sections 4 and 5,71 it
declined to rule on constitutional grounds,72 holding instead that
the district was eligible to seek bailout under the Act.73
In Shelby County, Shelby County, Alabama, a covered
jurisdiction, sued in federal district court, arguing that Sections 4
and 5 of the Voting Rights Act were an unconstitutional
infringement on states’ rights.74
Although the Court
acknowledged that voter discrimination still existed, it reasoned
that the prevalence of voter discrimination that justified Section
4’s coverage formula was no longer characteristic of some or all of
the covered jurisdictions.75
On the other hand, the Court
acknowledged that the improvements seen in many jurisdictions
could be credited, in large part, to the Voting Rights Act itself.76
Nonetheless, the Court struck down Section 4 of the Act—making
Section 5 inapplicable until such time as Congress develops a new
coverage formula—because of its basis in “decades-old data and
eradicated practices.”77 In a dissenting opinion, Justice Ginsburg
warned that, although the Voting Rights Act has gone a long way
towards protecting minority voting rights, jurisdictions covered by
federal preclearance have continued to attempt to implement
legislation that infringes on the right to vote.78 Justice Ginsburg
argued that, with the elimination of the federal preclearance
requirement, the country would see an increase in the number of
laws that have a negative impact on minority voting rights.79
70. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 196–97
(2009).
71. Id. at 203 (“The evil that §5 is meant to address may no longer be
concentrated in the jurisdictions singled out for preclearance. The statute’s
coverage formula is based on data that is now more than 35 years old, and there is
considerable evidence that it fails to account for current political conditions.”).
72. Id. at 205 (citing Escambia County v. McMillan, 446 U.S. 48, 51 (1984) (“It
is a well-established principle governing the prudent exercise of this Court’s
jurisdiction that normally the Court will not decide a constitutional question if
there is some other ground upon which to dispose of the case.”)).
73. Id. at 197.
74. Shelby Cty. v. Holder, 133 S. Ct. 2612, 2621–22 (2013).
75. Id. at 2618–19.
76. The Court pointed specifically to Selma, Alabama, which, it noted, was once
the site of Bloody Sunday, but is now governed by an African American mayor. Id.
at 2626.
77. Id. at 2627.
78. Id. at 2634 (Ginsburg, J., dissenting).
79. Id.
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B. Section 2 of the Voting Rights Act: Prohibition on Voter
Discrimination
In the aftermath of Shelby County v. Holder, what substance
remains of the Voting Rights Act lies in Section 2.80 In striking
down Section 4 of the Voting Rights Act, and thereby making
Section 5 inapplicable to any state or political subdivision, the
Supreme Court made clear that its decision in Shelby did not
impact Section 2 of the Act.81 Going forward, therefore, Section 2
provides the only grounds for challenging voting practices and
procedures on the basis that they deny or infringe the right to vote
on account of race.82 The legislative history of the Voting Rights
Act sheds some light on the current state of Section 2; its modern
history begins with City of Mobile v. Bolden.83
In 1979, Black citizens of Mobile, Alabama challenged the
City’s practice of electing its commissioners at large.84 Plaintiffs
alleged that this practice was an unfair dilution of their voting
strength, a violation of the Fourteenth and Fifteenth
Amendments, and a violation of Section 2 of the Voting Right
Act.85 The Supreme Court rejected the claims, reasoning that for a
voting practice to violate the Constitution, it must be motivated by
a discriminatory purpose;86 the same must be true for a voting
practice to violate Section 2 of the Voting Rights Act.87
Congress responded to the Court’s decision in Bolden by
amending the Voting Rights Act in 1982 to clarify that a violation
of Section 2 can be established if a federal, state, or local voting
procedure has the purpose or effect of improperly diluting the
80. See 52 U.S.C. § 10301(a) (2014).
81. Shelby Cty., 133 S. Ct. at 2631 (“Our decision in no way affects the
permanent, nationwide ban on racial discrimination in voting found in § 2.”).
82. See 52 U.S.C. § 10301(a) (2014); Myrna Pérez & Jerry H. Goldfeder, After
‘Shelby County’ Ruling, Are Voting Rights Endangered?, BRENNAN CTR. FOR
JUSTICE (Sept. 23, 2013), http://www.brennancenter.org/analysis/after-shelbycounty-ruling-are-voting-rights-endangered (“In a post-Shelby County world
. . . voting rights advocates can no longer rely upon the preclearance process to
block discriminatory election practices.”).
83. 446 U.S. 55 (1980).
84. Id. at 58.
85. Id.
86. Id. at 66–67 (“This burden of proof is simply one aspect of the basic
principle that only if there is purposeful discrimination can there be a violation of
the Equal Protection Clause of the Fourteenth Amendment . . . . [T]his principle
applies to claims of racial discrimination affecting voting just as it does to other
claims of racial discrimination.”).
87. Id.
2016]
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87
votes of members of a minority group.88
Since the 1982
amendment, Section 2 of the Voting Rights Act reads as follows:
(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied by
any State or political subdivision in a manner which results in
a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color . . . .
(b) A violation of subsection (a) is established if, based on the
totality of the circumstances, it is shown that the political
processes leading to nomination or election in the State or
political subdivision are not equally open to participation by
members of a class of citizens protected by subsection (a) in
that its members have less opportunity than other members of
the electorate to participate in the political process and to
elect representatives of their choice. The extent to which
members of a protected class have been elected to office in the
State or political subdivision is one circumstance which may
be considered . . . .89
In amending the Act, the Senate Judiciary Committee
outlined the factors to be considered in determining whether a
voting practice or procedure denies minority voters the right to
participate in the political process and elect candidates of their
choice.90 These factors include: (1) the “history of official racial
discrimination in the state or political subdivision” impacting
electoral participation; (2) racial polarization of voting and
political campaigns; (3) the use of any practices or procedures that
increase opportunity for discrimination against a minority group;
(4) whether minorities have been denied access to the “candidate
slating process”; (5) whether minorities in the state or political
subdivision face either purposeful discrimination or the effects of
discrimination in other areas such as education, healthcare, or
employment; (6) whether political campaigns have been subtly or
overtly racist; and (7) whether “members of the minority group
have been elected to public office in the jurisdiction.”91 The
Committee also emphasized that this list is not comprehensive or
exclusive, and a party need not prove any particular number of
factors.92
88. 52 U.S.C. § 10301(b) (2014); see also S. REP. NO. 97-417, at 27 (1982) (“The
amendment to the language of Section 2 is designed to make clear that plaintiffs
need not prove a discriminatory purpose in the adoption or maintenance of the
challenged system of practice in order to establish a violation.”).
89. 52 U.S.C. § 10301(a)–(b) (emphasis added).
90. S. REP. NO. 97-417, at 28–29 (1982).
91. Id.
92. Id.
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Thornburg v. Gingles was the first Section 2 case decided by
the Supreme Court after the adoption of the 1982 amendments.93
The Court invalidated a North Carolina redistricting plan on the
basis that it had a discriminatory effect on the ability of Black
citizens to elect candidates of their choice, in violation of Section
2.94 In so holding, the Court validated the 1982 amendments.95
Specifically, the Court emphasized that the 1982 amendments
expressly rejected the holding in Bolden, which required that a
court find proof of intent to discriminate against minority voters in
order to find that a policy or practice violated Section 2.96 Thus,
the “results in” language added to subsection (a) of Section 2
mandates that a practice or procedure be invalidated if it has the
effect of denying or infringing the right to vote.97
In determining whether a practice or procedure results in the
denial or abridgment of the right to vote on account of race,
subsection (b) requires a court to look to the “totality of the
circumstances.”98 In Gingles, the Court used the factors outlined
in the 1982 Senate Judiciary Committee report to determine that,
under the totality of the circumstances, the North Carolina
redistricting plan had a discriminatory effect on the ability of
minority voters to elect candidates of their choice.99 Consequently,
after Gingles, a plaintiff may use the factors laid out in the Senate
Judiciary Committee report to establish that a state or local
government’s law or practice violates Section 2.100
While it is not necessary to prove purposeful discrimination
on the basis of race, color, or membership in a language minority
group, Section 2 still prohibits such purposeful discrimination.101
According to the Court’s decision in Village of Arlington Heights v.
Metropolitan Housing Development Corp., a plaintiff alleging
discriminatory intent under Section 2 must prove that adoption of
the voting practice or procedure was motivated by “invidious
93. 478 U.S. 30 (1986).
94. Id. at 80.
95. Id. at 48–49 (discussing the application of the 1982 Voting Rights Act
Amendments and accompanying Senate Committee Report factors to claims under
Section 2 of the Voting Rights Act).
96. Id. at 43–44 (citing City of Mobile v. Bolden, 446 U.S. 55, 66–67 (1980)).
97. Id. at 44.
98. 52 U.S.C. § 10301(b) (2014).
99. Gingles, 478 U.S. at 44–45; S. REP. NO. 97-417, at 28–29 (1982).
100. Gingles, 478 U.S. at 46.
101. 52 U.S.C. § 10301 (2014); see also Section 2 of the Voting Rights Act, supra
note 51.
2016]
Selma to Selma
89
discriminatory purpose.”102
To determine whether a voting
practice or procedure was adopted with invidious discriminatory
purpose, courts must consider factors including the “historical
background of the decision,”103 the specific sequence of events
leading up to the decision, and the legislative intent or
administrative history.104
Since Gingles, the Department of Justice has brought
numerous challenges to voting practices and procedures, many of
which have been successful claims that at-large election schemes
have a disproportionate impact on minority voting rights in
violation of Section 2.105 In recent years, both the Department of
Justice and civil rights groups have also begun to challenge voter
ID laws under Section 2.106 In most instances, however, these
challenges have been significantly less successful.107 In 2014, for
example, the Seventh Circuit upheld a Wisconsin voter ID law
against allegations that it violated Section 2 because minority
voters are less likely to possess the photo identification required to
102. 429 U.S. 252, 266 (1977).
103. This factor is particularly relevant “if it reveals a series of official actions
taken for invidious purposes.” Id. at 267.
104. Id. at 266–68.
105. E.g., Consent Judgment and Decree at 2–4, United States v. Town of Lake
Park No. 09-80507-MARRA (S.D. Fla. 2009) (stipulating that Lake Park, Florida
would modify its at-large election scheme such that it no longer resulted in the
denial or abridgement of the right to vote on account of race or color in violation of
Section 2 of the Voting Rights Act); Second Order Extending and Modifying
Stipulation and Order Originally Entered April 21, 1994 at 3, United States v.
Cibola Cty., No. CIV-93-1134-LH/LFG (D. N.M. 2007) (requiring that Cibola
County come into compliance with the Voting Rights Act, the National Voter
Registration Act of 1993, and the Help America Vote Act of 1992); Consent
Judgment and Decree at 4–5, United States v. Benson Cty., No. A2-00-30 (D.N.D.
2000) (stipulating that Benson County be permanently enjoined from
administering elections under its at-large model, which resulted in Native
Americans having less opportunity to participate in the political process and elect
candidates of their choice). For a comprehensive list of challenges brought under
Section 2 of the Voting Rights Act see Cases Raising Claims Under Section 2 of the
Voting
Rights
Act,
U.S.
DEP’T
OF
JUSTICE
(July
8,
2016),
https://www.justice.gov/crt/cases-raising-claims-under-section-2-voting-rights-act-0.
106. E.g., Frank v. Walker, 768 F.3d 744, 755 (7th Cir. 2014), cert. denied 135 S.
Ct. 1551 (2015) (holding that Wisconsin’s Act 23, which required voters to present a
photo identification at the polls in order to vote, violated neither Section 2 nor the
Constitution).
107. Id. Challenges to voter ID laws under the Fourteenth Amendment have
also been unsuccessful. See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S.
181, 204 (2008) (upholding Indiana’s voter ID law and reasoning that the burden
on the right to vote must be balanced against the State’s justification for the
burden imposed); Common Cause/Georgia v. Billups, 554 F.3d 1340, 1345 (11th
Cir. 2009) (applying the balancing test outlined by the Court in Crawford and
holding that the burden imposed by the photo ID law in Georgia was outweighed by
the State’s interest in protecting the right to vote).
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vote.108 While the court noted that there were documented
disparities in comparing the number of minority and White voters
who possessed the necessary photo ID, it reasoned that this was
not proof of a “denial” of the right to vote by the State of
Wisconsin.109 The Supreme Court declined to take up the case on
appeal.110
In contrast, two successful challenges to voter ID laws under
Section 2 of the Voting Rights Act were brought in North
Carolina111 and Texas.112 In North Carolina, the Department of
Justice challenged a photo ID law passed in the aftermath of
Shelby County v. Holder, alleging that it had a disproportionate
effect on Black voters.113 On July 29, 2016, the Fourth Circuit
struck down the law, reasoning that it was passed with
discriminatory intent in violation of both the Voting Rights Act
and the Constitution.114
In Texas, a district court judge held in 2014 that the Texas
photo ID law violated Section 2 of the Voting Rights Act, as well as
the First and Fourteenth Amendments because of its burden on
the right to vote and disproportionate effect on minority voters.115
Subsequently, however, the Fifth Circuit stayed the decision
because of its proximity to the 2014 election, and the Supreme
Court declined to hear the case.116 On March 9, 2016, the Fifth
108. Frank, 768 F.3d at 751.
109. Id. at 752–54 (noting that the district judge estimated that 92.7% of Whites,
86.8% of Blacks, and 85.1% of Latinxs possessed the required photo IDs).
110. Frank v. Walker, 135 S. Ct. 1551 (2015).
111. Complaint, United States v. North Carolina, No. 13-cv-861 (M.D.N.C. Sept.
30, 2013).
112. Veasey v. Perry, 71 F. Supp. 3d 627 (S.D. Tex. 2014).
113. Complaint, supra note 111, at 16 (noting that 7.4% of Black voters lack the
required photo IDs, compared to 3.8% of White voters); Sari Horwitz, Trial to Start
in Lawsuit over North Carolina’s Voter-ID Law, WASH. POST (Jan. 24, 2016),
https://www.washingtonpost.com/world/national-security/trial-to-start-over-northcarolinas-voter-id-law/2016/01/24/fac97d20-c1d1-11e5-9443-7074c3645405_story.
html (quoting Rev. William J. Barber II, President of the North Carolina NAACP,
who argued that state legislators passed the voter ID law with the intent of
restricting the voting rights of people of color after record-high minority turnout in
the 2012 election).
114. N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 214 (4th
Cir. 2016) (“In holding that the legislature did not enact the challenged provisions
with discriminatory intent, the court seems to have missed the forest in carefully
surveying the many trees. This failure of perspective led the court to ignore critical
facts bearing on legislative intent, including the inextricable link between race and
politics in North Carolina.”).
115. Veasey, 71 F. Supp. 3d at 693, 695.
116. Veasey v. Abbott, 796 F.3d 487, 496 (5th Cir. 2015), cert. denied Veasey v.
Perry, 135 S. Ct. 9 (2014).
2016]
Selma to Selma
91
Circuit announced that it would reconsider the issue of whether
the Texas voter ID law violated the Voting Rights Act or the
Constitution.117 Then, on July 20, 2016, the Fifth Circuit held that
the stringent Texas Voter ID law violated the Voting Rights Act.118
In sum, in the aftermath of Shelby County v. Holder,
challenges to voting practices and procedures must be brought
under Section 2.119 Under Section 2, plaintiffs can allege that the
practice or procedure has the purpose or effect of discriminating on
the basis of race, color, or membership in a language minority
group.120
Claims alleging purposeful discrimination are
established with reference to the historical background of the
decision to implement the voting practice or procedure, the specific
sequence of events leading up to the decision, and the legislative
intent or administrative history of the decision.121 Claims alleging
discriminatory effect, however, can be established through proof
that, under the totality of the circumstances, the voting practice or
procedure had the effect of discriminating on the basis of race,
color, or membership in a language minority group.122
Discriminatory effect claims are established with reference to the
1982 Senate Judiciary Committee report/Gingles factors, including
the history of official racial discrimination in the state or political
subdivision impacting electoral participation, the prevalence of
racial polarization of voting and political campaigns, and the use
of any practices or procedures that increase opportunity for
discrimination against a minority group.123
III. Alabama’s Voter Photo Identification Law
A total of thirty-four states have passed laws requiring voters
to present a photo ID before casting a ballot.124 In June 2011, the
Alabama Legislature enacted a photo ID law,125 which legislators
117. Josh Gerstein, 5th Circuit to Revisit Texas Voter ID Law, POLITICO (Mar. 9,
2016), http://www.politico.com/blogs/under-the-radar/2016/03/5th-circuit-to-revisittexas-voter-id-law-220525.
118. Veasey v. Abbott, 830 F.3d 216, 265 (5th Cir. 2016); see also Jim Malewitz,
Texas Voter ID Law Violates Voting Rights Act, Court Rules, TEX. TRIB. (July 20,
2016), https://www.texastribune.org/2016/07/20/appeals-court-rules-texas-voter-id/.
119. See 52 U.S.C. § 10301(a) (2014); Pérez & Goldfeder, supra note 82.
120. § 10301(a).
121. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–
68 (1977).
122. 52 U.S.C. § 10301(b) (2014).
123. Thornburg v. Gingles, 478 U.S. 30, 44–45 (1986); S. REP. NO. 97-417, at 28–
29 (1982).
124. Underhill, supra note 2.
125. ALA. CODE § 17-9-30 (2011) (“Each elector shall provide valid photo
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claimed was aimed at preventing voter fraud.126 Prior to 2011,
voters were required to present an ID in order to vote, but were
permitted to use a non-photographic ID such as a utility bill, social
security card, or voter registration card.127 After the enactment of
the 2011 photo ID law, however, voters are required to present one
of seven forms of ID: (1) “[a] valid Alabama driver’s license or
nondriver [ID]”; (2) a valid photo ID issued by any state or the
federal government; (3) a valid United States passport; (4) a valid
employee photo ID card issued by Alabama or the federal
government; (5) a valid photo ID from a college or university in
Alabama; (6) a valid United States military photo ID; or (7) a valid
tribal photo ID card.128
When the Alabama Legislature passed the voter ID law in
2011, the State was still subject to federal preclearance under
Sections 4 and 5 of the Voting Rights Act.129 Between 1982 and
2013, Alabama sought preclearance on forty-eight proposed voting
changes, but the Department of Justice denied authorization each
time.130 These requests for approval included five attempts by the
State to implement voter ID laws.131 Thus, when the 2011 photo
ID law was adopted, state officials were very much aware of the
federal government’s prior concerns about implementing a more
stringent voter ID law in the State of Alabama. Nonetheless, the
State did not immediately seek the necessary approval from the
federal government to implement the law.132 The office of the
identification to an appropriate election official prior to voting.”).
126. Kim Chandler, Alabama Photo Voter ID Law to Be Used in 2014, State
Officials Say, AL.COM (June 25, 2013, 5:07 PM), http://blog.al.com/wire/
2013/06/alabama_photo_voter_id_law_to.html (“The debate over photo ID has been
highly partisan. Republicans and proponents have said the strict ID is needed to
guard against voter fraud.”). But see Michael A. Cohen, Alabama ‘Clarifies’ Voter
ID Confusion, BOS. GLOBE (Oct. 6, 2015), https://www.bostonglobe.com/opinion/
2015/10/06/alabama-clarifies-voterconfusion/qYHKjeGSURhMaxeYtJG6dI/story.
html (“Republican leaders argued at the time this was a necessary tool for stopping
voter fraud, even though voter fraud is practically nonexistent not only in
Alabama, but also pretty much everywhere in the country.”).
127. ALA. CODE § 17-9-30 (1975) (amended 2011).
128. ALA. CODE § 17-9-30(a)(1)–(7) (2011).
129. 52 U.S.C. §10303(b) (2006), invalidated by Shelby County v. Holder, 133 S.
Ct. 2612 (2013).
130. Voting Determination Letters for Alabama, U.S. DEP’T OF JUSTICE, (Aug. 7,
2015), https://www.justice.gov/crt/voting-determination-letters-alabama.
131. Id.
132. Kim Chandler, State Has Yet to Seek Preclearance of Photo Voter ID Law
Approved in 2011, AL.COM (June 12, 2013, 7:30 AM), http://blog.al.com/wire/
2013/06/photo_voter_id.html; NAACP LEGAL DEF. & EDUC. FUND, INC., supra note
8 (noting that the voter ID law was passed by the Alabama Legislature in 2011, but
was not implemented until after the Supreme Court’s 2013 decision in Shelby
2016]
Selma to Selma
93
Alabama Attorney General claimed that the State was waiting on
the Secretary of State’s Office to develop rules for a free voter ID
program, which was required under the law.133 At the same time,
a spokesperson for the Alabama Secretary of State’s Office
declined to elaborate on how the free ID program would work
saying, “The photo voter ID law has not yet been precleared. We
cannot announce or implement the process until it has been
precleared.”134 However, just two days after the Supreme Court
handed down Shelby County, Alabama officials announced that
the 2011 photo ID law would go into effect immediately.135
In announcing that the 2011 photo ID law would go into
effect, Alabama’s governor said that he believed preclearance was
no longer necessary.136 Democratic elected officials, on the other
hand, said they feared the law would be used to disenfranchise
Black and elderly voters.137 Estimates suggest that the photo ID
law has the potential to negatively impact between 250,000 and
500,000 voters in a given election.138 This disenfranchisement is
significant and has the ability to impact the outcome of an
election.139
Furthermore, Black and Latinx voters are
substantially less likely to own a photo ID than White voters.140
County v. Holder, which removed Alabama’s federal preclearance requirements).
133. Chandler, supra note 132.
134. Id.
135. Johnson, supra note 9.
136. Id.; see also Brandon Moseley, Alabama Republican Leaders Respond to
Supreme Court Decision, ALA. POLITICAL REP. (June 26, 2013), http://www.
alreporter.com/alabama-republican-leaders-respond-to-supreme-court-decision/
(“Alabama Republican Party Chairman Bill Armistead said in a written statement,
‘The Supreme Court’s decision today to rule Section 4 of the Voting Rights Act
Unconstitutional [sic] is a testament to how far we have come as a state and as a
nation in the area of fair and free elections. Attorney General Eric Holder should
not have the power to play political games with the voting laws in Alabama and
thanks to the courage of Shelby County; [sic] he no longer has that power.’”).
137. Johnson, supra note 9 (quoting Democratic State Representative Alvin
Holmes as arguing that Alabama’s photo ID law is exactly the type of law that
should be reviewed by the Department of Justice).
138. See JEALOUS & HAYGOOD, supra note 4, at 8.
139. Id. (noting that, in the State of Alabama, the margin of victory in the 2014
gubernatorial election was 320,139 votes); 2000 Official Presidential General
Election Results, FED. ELECTION COMM’N (Dec. 2001), http://www.fec.gov/pubrec/
2000presgeresults.htm (indicating that in 2000, President George W. Bush beat
Vice President Al Gore by a margin of 537 votes in Florida); John T. Woolley &
Gerhard Peters, Election of 1960, THE AM. PRESIDENCY PROJECT, http://www.
presidency.ucsb.edu/showelection.php?year=1960 (last visited Jan. 14, 2017)
(showing that, in the 1960 presidential election margins of victory in Alaska,
Delaware, Hawaii, and Nevada were as few as 115 votes).
140. BRENNAN CTR. FOR JUSTICE, CITIZENS WITHOUT PROOF: A SURVEY OF
AMERICANS’ POSSESSION OF DOCUMENTARY PROOF OF CITIZENSHIP AND PHOTO
IDENTIFICATION 3 (2006), https://www.brennancenter.org/sites/default/files/legacy/
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Studies show that twenty-five percent of otherwise-eligible Black
voters do not have a valid government-issued photo ID, compared
to eight percent of eligible White voters, increasing the probability
that the law will disenfranchise minority groups.141
As the Alabama photo ID law was going into effect, the State
announced that it would close thirty-one driver’s license-issuing
office locations across the state, making it harder for voters to
obtain the government-issued IDs required by the Act.142
Moreover, many of the driver’s license-issuing locations closing
their doors are located in predominately Black counties.143 Selma,
Alabama retained its driver’s license office, but nearly all of the
surrounding Black Belt counties did not.144 Although the State
maintained that it was shutting down the driver’s license offices
as a cost-saving measure,145 closing driver’s license offices in
predominantly Black counties will certainly have a detrimental
effect on the ability of Black voters to obtain the photo IDs now
required to vote.146 In a letter written to Alabama’s Governor,
Secretary of the Law Enforcement Agency, and Secretary of State
on October 2, 2015, the NAACP Legal Defense & Education Fund
offered strong objections to the photo ID law and the subsequent
driver’s license office closures.147 Fund President Sherrilyn Ifill
wrote that “[t]hese planned closures are consistent with Alabama’s
long, egregious and ongoing pattern of racial discrimination
against Black voters.”148 Former U.S. Secretary of State Hillary
Clinton also weighed in on the matter, echoing the concerns of the
NAACP and calling on Alabama’s governor to keep the driver’s
license offices open.149
d/download_file_39242.pdf.
141. Id.
142. Berman, supra note 10.
143. Id. (“‘Every single county in which [B]lacks make up more than 75 percent
of registered voters will see their driver license office closed,’ writes John Archibald
of the Birmingham News. ‘The harm is inflicted disproportionately on voters who
happen to be [B]lack, and poor, in sparsely populated areas.’”).
144. Id.
145. Id.
146. See id. (noting many argue that this is exactly the type of voter
discrimination Section 5 was meant to protect against).
147. Letter from Sherrilyn A. Ifill, President & Dir. Counsel, NAACP Legal Def.
& Educ. Fund, Inc., to Robert Bentley, Governor of Ala., et al. (Oct. 2, 2015),
http://www.naacpldf.org/files/case_issue/2015.10.02%20LDF%20Alabama%20closur
es%20letter.pdf.
148. Id. at 2.
149. Stassa Edwards, Hillary Clinton Calls Alabama’s Voting Laws a ‘Blast from
the Jim Crow Past’, JEZEBEL: THE SLOT (Oct. 18, 2015, 12:30 PM),
http://theslot.jezebel.com/hillary-clinton-calls-alabamas-voting-laws-a-blast-from-
2016]
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95
Leading up to the 2016 presidential election, citizens, as well
as national, state, and local officials were concerned about how
and to what extent the 2011 photo ID law would disenfranchise
eligible voters trying to cast their ballots.150 When the law was
adopted, the Alabama Secretary of State’s office estimated that
twenty percent of registered voters—or 500,000 people—did not
have the photo IDs required to cast a ballot.151 In addition, since
the implementation of the photo ID law, the State closed driver’slicense issuing office in eight of the ten counties with the highest
concentration of Black voters.152 These facts, taken together,
demonstrate that the law will have a disproportionate impact on
the right and ability of Black voters to cast ballots for candidates
of their choices.153
IV. Challenging Alabama’s Photo ID Law Under Section 2
of the Voting Rights Act: Greater Birmingham
Ministries v. Alabama
On December 2, 2015, Greater Birmingham Ministries and
the Alabama chapter of the NAACP filed suit in United States
District Court, alleging that the 2011 Alabama photo ID law
violates Section 2.154 Specifically, Plaintiffs claimed that the law
was enacted with a racially discriminatory purpose, namely, to
limit the opportunity of Black and Latinx voters to participate
equally in the political process.155
In addition, Plaintiffs
maintained that the photo ID law, coupled with the closure of
driver’s license offices across the state, has a significant and
disproportionate effect on the right of Black and Latinx voters to
participate in the electoral process.156 Accordingly, Plaintiffs
1737189661 (noting that Secretary Clinton “accused Alabama Republicans . . . of
purposefully undoing the progress made in the state during the civil rights
movement”).
150. See id.; Ifill, supra note 147, at 3.
151. The Associated Press, New Photo Voter IDs to Be Available at County
Registrars’ Offices and from Traveling Van, AL.COM (Mar. 10, 2014, 7:58 PM),
http://blog.al.com/wire/2014/03/new_photo_voter_ids_to_be_avai.html.
152. Ifill, supra note 147, at 3.
153. See Berman, supra note 10.
154. See Complaint, supra note 11, at 64–65. The Complaint also alleged
violations of the Fourteenth and Fifteenth Amendments to the United States
Constitution; however, this Note focuses only on the Section 2 claims. See id. at 66.
155. Id. at 4–5.
156. Id. (“The Photo ID law was conceived and operates as a purposeful device to
further racial discrimination, and results in Alabama’s African-American and
Latin[x] (or Hispanic) voters having less opportunity than other members of the
electorate to participate effectively in the political process and to elect candidates of
their choice.”).
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asked that the State of Alabama be permanently enjoined from
enforcing the law.157 Subsequently, Plaintiffs also filed a motion
asking the court to grant a preliminary injunction as to the photo
ID law for all upcoming elections, including the November 8, 2016
general election.158
The State, however, urged the court to uphold the 2011 photo
ID law.159 Alabama argued that the national trend towards photo
ID laws and the fact that Alabama has one of the most lenient
photo ID laws in the country are sufficient reasons to uphold the
law.160 The State cited Crawford v. Marion County Election
Board161 and Common Cause/Georgia v. Billups162 in arguing that
it is within the government’s power to safeguard the right to vote
through the adoption of photo ID laws.163 Moreover, the State
contended that Plaintiffs falsely insinuated that the State delayed
the implementation of the photo ID law until after the Supreme
Court’s decision in Shelby County v. Holder.164 The State further
asserted that the Secretary of State’s Office was using the time to
educate and inform the public about the requirements of the photo
ID law, as required by statute.165 Finally, Defendants also argued
157. Id. at 68.
158. Plaintiffs’ Motion for a Preliminary Injunction at 1–2, Greater Birmingham
Ministries v. Alabama, No. 2:15-cv-02193-LSC (N.D. Ala. Jan. 8, 2016);
Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction, Greater
Birmingham Ministries v. Alabama, No. 2:15-cv-02193-LSC (N.D. Ala. Jan. 8,
2016).
159. Secretary of State Merrill’s Opposition to the Plaintiffs’ Motion for
Preliminary Injunction (Docs. 5, 6, & 14) & Partial Motion to Dismiss at 60,
Greater Birmingham Ministries v. Alabama, No. 2:15-cv-02193-LSC (N.D. Ala. Jan.
29, 2016) [hereinafter Opposition to the Plaintiff’s Motion].
160. Id. at 9–10.
161. 553 U.S. 181, 191–97 (2008) (reasoning that photo ID laws further state
interests, including detecting and deterring voter fraud, modernizing elections, and
increasing voter confidence).
162. 554 U.S. F.3d 1340, 1354 (11th Cir. 2009) (holding that Georgia’s photo ID
law did not infringe on the right to vote in violation of the Fourteenth
Amendment).
163. Opposition to the Plaintiffs’ Motion, supra note 159, at 14–15.
164. Id. at 16. Defendants, however, cite no proof other than pointing to the fact
that the language of the Act provided that the legislation should be in effect by the
first 2014 statewide primary. See Act No. 2011-673 at § 2. Defendants, for
example, provide no explanation as to why they could not have sought
implementation or preclearance prior to the Supreme Court’s decision in Shelby
County. Moreover, they do not even attempt to explain why they subsequently
sought to implement the law just days after Shelby County was handed down, a
seemingly bizarre coincidence if they were simply following the law. Opposition to
the Plaintiffs’ Motion, supra note 159, at 16.
165. Opposition to the Plaintiffs’ Motion, supra note 159, at 25; see ALA. CODE
§ 17-9-30(n). The Secretary of State’s Office noted that it also prepared a voter
guide focused on photo IDs, maintained a website focused on photo IDs, met with
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that Plaintiffs have not proved that there are voters who lack an
acceptable form of photo ID166 and maintained “anyone without a
photo ID can easily get one.”167
On February 17, 2016, the district court denied Plaintiffs’
request for a preliminary injunction.168 The right to vote, the
Court noted, means the right to be free from undue burden.169 The
Court continued, however, and added that the right to vote also
includes an assurance that one’s vote will be counted and “any
fraudulent vote cast effectively cancels the right of a citizen to
have his or her vote counted.”170 The Court reasoned that
Alabama’s photo ID law is simply indicative of a nationwide trend
towards requiring photo IDs at the polls.171 Moreover, the Court
noted that similar photo ID laws have been upheld in Indiana,172
Georgia,173 and Wisconsin174 under constitutional and Voting
Rights Act challenges.175 Finally, the Court noted that election
workers are already preparing for the upcoming elections, and any
changes to voter ID requirements would disrupt this progress and
require retraining.176
V. Analysis
Although the Court’s decision in Shelby County v. Holder
allowed Alabama to implement the 2011 photo ID law without
first seeking federal preclearance,177 voting practices and
procedures that “result in a denial or abridgement of the right of
any citizen of the United States to vote on account of race or color”
citizens and citizens’ groups to explain the requirements of the law, spoke publicly
about the law, and conducted an educational program that included billboard,
radio, and television advertisements. Opposition to the Plaintiffs’ Motion, supra
note 159, at 22–25.
166. Id. at 40–46.
167. Id. at 47.
168. Greater Birmingham Ministries v. Alabama, 161 F. Supp. 3d 1104, 1104,
1119 (N.D. Ala. 2016) (“Plaintiffs have failed to prove either likelihood of success
on the merits or that they will suffer irreparable harm.”).
169. Id. at 1107.
170. Id.
171. Id. at 1109–10.
172. Id. at 1109 (citing Crawford v. Marion Cty. Election Bd., 553 U.S. 181
(2008)).
173. Id. (citing Common Cause/Georgia v. Billups, 554 F.3d 1340 (11th Cir.
2009)).
174. Id. (citing Frank v. Walker, 768 F.3d 744 (7th Cir. 2014)).
175. Id.
176. Id. at 1118.
177. 133 S. Ct. 2612, 2631 (2013).
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continue to be a violation of Section 2.178 The Supreme Court
made this clear when handing down its decision in Shelby
County.179 Claims brought under Section 2 must allege that the
voting practice or procedure was enacted with the purpose of
discriminating on the basis of race, color or membership in a
language minority group, or they must allege that the voting
practice or procedure results in such discrimination.180
In considering the Plaintiffs’ challenge to the Alabama voter
ID law, the District Court should look to the Arlington Heights
factors to determine whether the practice or procedure is the
result of purposeful discrimination,181 and it should look to the
Senate Judiciary Committee Report/Gingles factors to determine
whether the law results in discrimination on the basis of race,
color, or membership in a language minority group.182
In
examining the aforementioned factors as they relate to Alabama’s
2011 photo ID law, it is clear that the law has both the purpose
and effect of discriminating on the basis of race. As such, the
court should grant the Plaintiffs’ request for a permanent
injunction. At the outset, it is important to note that the Supreme
Court has never considered a challenge to a photo ID law under
Section 2.183 Thus, although Crawford v. Marion County Election
Board is the Supreme Court’s most recent decision on a photo ID
law, its analysis is not relevant to the challenge to Alabama’s
photo ID law under Section 2 because it was decided solely on
constitutional grounds.184
Moreover, the Eleventh Circuit’s
decision in Common Cause/Georgia v. Billups, which upheld
Georgia’s photo ID law, also did not consider a challenge under
Section 2 of the Voting Rights Act.185 These cases should,
therefore, not be cited as precedent for any decision about whether
to uphold or strike down Alabama’s voter ID law in the face of a
Section 2 challenge.
178. 52 U.S.C. § 10301(a) (2014).
179. Shelby County, 133 S. Ct. at 2619 (“Section 2 is permanent, applies
nationwide, and is not at issue in this case.”).
180. 52 U.S.C. § 10301 (2014).
181. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
266–68 (1976).
182. S. REP. NO. 97-417, at 28–29 (1982); Thornburg v. Gingles, 478 U.S. 30, 44–
45 (1986).
183. But see Crawford v. Marion Cty Election Bd., 553 U.S. 181, 187 (2008)
(ruling on a challenge to Indiana’s photo ID law under the Fourteenth
Amendment).
184. Id. at 201–02.
185. See Common Cause/Georgia v. Billups, 554 F.3d 1340 (11th Cir. 2009)
(considering a constitutional challenge to Georgia’s photo ID law).
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A. Alabama’s Photo ID Law Was Motivated by a
Discriminatory Purpose
In Village of Arlington Heights v. Metropolitan Housing
Development Corp., the Supreme Court held that claims alleging
purposeful discrimination are established with reference to the
historical background of the decision to implement the practice or
procedure, the specific sequence of events leading up to the
decision, and the legislative intent or administrative history of the
decision.186
Alabama’s past and recent history of racial
discrimination, the State’s decision to delay implementation of the
law until after the Supreme Court handed down Shelby County v.
Holder, and a legislative history fraught with overt racial
overtones are clear evidence that Alabama’s photo ID law has the
purpose of discriminating on the basis of race.
Alabama’s history of maintaining tests or devices such as poll
taxes and literacy tests as prerequisites to voting, as well as its
record of low voter turnout, were what first resulted in the
requirement that—under Section 5 of the Voting Rights Act—the
State seek federal preclearance before implementing any new
voting practice or procedure.187 Alabama remained a covered
jurisdiction under Section 4 of the Voting Rights Act for nearly
fifty years.188 During those fifty years, Alabama continued its
attempts to implement racially discriminatory voting practices
and procedures that, when preclearance was sought, were not
allowed to go into effect.189 Alabama’s fifty-year history of official
attempts at racial discrimination should be used as evidence in
determining that that the recent photo ID law has the purpose of
discriminating on the basis of race.
In addition to Alabama’s history of racial discrimination in
voting practices and procedures, racial discrimination is prevalent
in schools, housing, and hiring practices. Although more than
sixty years have passed since the Supreme Court handed down its
186. Village of Arlington Heights, 429 U.S. at 266–68.
187. See South Carolina v. Katzenbach, 383 U.S. 301, 312–13 (1966).
188. Complaint, supra note 11, at 16 (citing Renewing the Temporary Provisions
of the Voting Rights Act: Legislative Options after LULAC v. Perry: Hearing Before
the Subcomm. on the Constitution, Civil Rights & Property Rights of the S. Comm.
on the Judiciary, 109th Cong. 365–402 (2006)).
189. E.g. Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015)
(blocking Alabama’s attempts at redistricting); City of Pleasant Grove v. United
States, 479 U.S. 462 (1987) (blocking Alabama’s selective annexations); Hunter v.
Underwood, 471 U.S. 222 (1985) (finding unconstitutional Alabama’s constitutional
provision that disenfranchised people convicted of certain categories of crimes).
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decision in Brown v. Board of Education,190 forty-three school
districts in Alabama remain under some form of federal oversight
as a result of continued segregation.191 In addition, in 2009, the
Department of Justice filed suit in Alabama alleging racial
discrimination at an apartment complex in Clanton, Alabama.192
Moreover, in 2015, 49.6% of Alabama cases before the Equal
Employment Opportunity Commission alleged discrimination on
the basis of race.193 These claims made up 4.5% of the nationwide
claims of race-based discrimination in employment.194 The history
of racial discrimination in Alabama across voting practices,
education, housing, and employment is evidence that the recent
photo ID law was adopted with the purpose of discriminating on
the basis of race.
The decision to delay implementation of Alabama’s photo ID
law until after the Supreme Court handed down Shelby County v.
Holder demonstrates that the State of Alabama believed that the
Department of Justice would deny preclearance of the legislation
because of its detrimental effect on the ability of minority voters to
cast ballots for candidates of their choice.195 As such, it also
indicates that legislators and other state officials were aware of
the photo ID law’s likely discriminatory effect when the law was
both adopted and implemented.
It is therefore clear that
Alabama’s photo ID law has the purpose of discriminating on the
basis of race in violation of Section 2 of the Voting Rights Act.
When the Alabama Legislature passed the 2011 photo ID
law, it did so against a racially-charged backdrop.196 Data from
the U.S. Census Bureau showed that voter turnout across the
190. 347 U.S. 483, 495 (1954) (holding that separate public school facilities for
Black and White students violates the Equal Protection Clause of the Fourteenth
Amendment).
191. Educational
Opportunity
Cases,
U.S.
DEP’T
OF
JUSTICE,
https://www.justice.gov/crt/educational-opportunities-cases#race (Oct. 18, 2016);
Stan Diel, Segregation Again? Racial Picture of Alabama Schools Changes 60 Years
After Brown v. Board of Education, AL.COM, (Apr. 16, 2014 10:27 PM),
http://blog.al.com/wire/2014/04/segregation_still_racial_pictu.html.
192. Press Release, U.S. Dep’t of Justice, Justice Department Files Lawsuit
Alleging Racial Discrimination at Apartment Complex in Clanton, Alabama (July
21, 2009), https://www.justice.gov/opa/pr/justice-department-files-lawsuit-allegingracial-discrimination-apartment-complex-clanton.
193. FY 2009–2015 EEOC Charge Receipts for Alabama, U.S. EQUAL EMPL’T
OPPORTUNITY COMM’N, https://www1.eeoc.gov/eeoc/statistics/enforcement/charges_
by_state.cfm#centercol (select “Alabama” from the drop-down list, then click the
“Submit” button).
194. Id.
195. See 52 U.S.C. § 10304(b) (2006).
196. Complaint, supra note 11, at 17–19.
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country had increased by nearly five million in the 2008
presidential election, with much of the increase seen among
Latinx, Black, and young voters.197 This change in voter turnout
was also reflected in Alabama.198 As a result, the 2010 election
season was highly racially charged.199 During the election, State
Senators Scott Beason and Benjamin Lewis engaged in a scheme
to “suppress [B]lack votes by manipulating what issues appeared
on the 2010 ballot.”200 In recorded conversations, both Senators
were caught using derogatory and racist slurs against Black voters
when expressing their concerns that, were a gambling referendum
to appear on the ballot, “‘[e]very [B]lack, every illiterate’ would be
‘bused on HUD financed buses’ to the polls.”201 Both Senators
Beason and Brooks later voted in favor of the 2011 voter ID bill.202
In addition, the 2011 photo ID law was passed alongside two
other racially discriminatory bills. The first—a state immigration
law designed to crack down on undocumented immigrants in the
State—was sponsored by Senator Beason.203 Black legislators
voted overwhelming to oppose the bill, and in December 2011, a
federal district court enjoined portions of the bill after finding
evidence of intentional discrimination during the legislative
debates.204 The second bill, a redistricting plan, was subsequently
challenged in federal district court by members of Alabama’s
Legislative
Black
Caucus
as
unconstitutional
racial
gerrymandering.205 In 2015, the Supreme Court determined that
the Alabama Legislature had likely engaged in purposeful racial
discrimination in violation of the Fourteenth Amendment and
remanded the case to Alabama district court.206 The racially
charged election season and legislative session that served as a
backdrop to the passage of Alabama’s photo ID law should be
taken as proof of the law’s intent to purposefully discriminate on
the basis of race.
197. THOM FILE & SARAH CRISSEY, U.S. CENSUS BUREAU, VOTING AND
REGISTRATION IN ELECTION OF NOVEMBER 2008: POPULATION CHARACTERISTICS 2
(2012), https://www.census.gov/prod/2010pubs/p20-562.pdf.
198. Complaint, supra note 11, at 17.
199. Id. at 18.
200. United States v. McGregor, 824 F. Supp. 2d 1339, 1345 (M.D. Ala. 2011).
201. Complaint, supra note 11, at 18 (citing McGregor, 824 F. Supp. 2d at 1346).
202. Id. at 20.
203. ALA. CODE §§ 31-13-1, 31-13-2 (2011); United States v. Alabama, 691 F.3d
1269, 1276 (11th Cir. 2012).
204. Ala. Fair Hous. v. Magee, 835 F. Supp. 2d 1165, 1192–94 (M.D. Ala. 2011).
205. Ala. Legislative Black Caucus v. Alabama, 989 F. Supp. 2d 1227, 1236
(M.D. Ala. 2013).
206. Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1262–63 (2015).
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B. Alabama’s Photo ID Law Results in Black Voters Having
Less of an Opportunity to Participate in the Political
Process and Elect Candidates of Their Choice
Claims alleging that a voting practice or procedure results in
the denial of the right of minority voters to participate in the
political process and elect candidates of their choice can also be
brought under Section 2 of the Voting Rights Act.207 These claims
are established with reference to a series of factors outlined by the
Senate Judiciary Committee when adopting the 1982 amendments
to the Voting Rights Act208 and adopted by the Court in Gingles.209
These factors include: (1) the “history of official racial
discrimination in the state or political subdivision” impacting
electoral participation; (2) racial polarization of voting and
political campaigns; (3) the use of any practices or procedures that
increase opportunity for discrimination against a minority group;
(4) whether minorities have been denied access to the “candidate
slating process”; (5) whether minorities in the State or political
subdivision face either purposeful discrimination or the effects of
discrimination in other areas such as education, healthcare, or
employment; (6) whether political campaigns have been subtly or
overtly racist; and (7) whether “members of the minority group
have been elected to public office in the jurisdiction.”210 Not all
factors must be met in order to satisfy a claim under Section 2 of
the Voting Rights Act.211 Instead, the court should look to the
totality of the circumstances.212
Analyzed under both the language of Section 2 and the
Senate Judiciary Committee Report factors, Alabama’s voter ID
law results in Black voters having less of an opportunity to
participate in the political process and elect candidates of their
choice. Therefore, the federal district court considering Greater
Birmingham Ministries should grant the Plaintiffs’ request for a
permanent injunction. First, the decision to grant or deny
Plaintiffs’ request for a permanent injunction should be made with
reference to Alabama’s long history of racial discrimination. The
court must recognize that Alabama remained a covered
207. Ala. Legislative Black Caucus v. Alabama, 989 F. Supp. 2d 1227, 1281
(M.D. Ala. 2013).
208. S. REP. NO. 97-417, at 28–29 (1982).
209. Thornburg v. Gingles, 478 U.S. 30, 37, 46 (1986).
210. S. REP. NO. 97-417, at 28–29.
211. Id.
212. 52 U.S.C. § 10301(b) (2014).
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jurisdiction under Section 4 for nearly fifty years.213 This, in and
of itself, is evidence of official racial discrimination impacting
electoral participation. As such, it satisfies the first Senate
Judiciary Committee Report factor.
Many of the Senate Committee Report factors can be
satisfied through the proof of purposeful discrimination discussed
above. For example, Alabama’s past and present history of
discrimination in education, housing, and employment satisfies
the fifth factor in the Senate Judiciary Committee Report.214 In
addition, the scheme to suppress Black voter turnout perpetrated
by State Senators Beason and Brooks should be used as evidence
to satisfy Senate Committee Report factor number two.215
In addition to the factors discussed above, the available data
indicate two things related to voter turnout in Alabama and across
the country in the aftermath of photo ID laws. First, after the
implementation of the 2011 photo ID law, Alabama saw a decrease
in voter turnout of 10.3 points from 2010 to 2014.216 The overall
turnout in 2014 was forty-one percent, which was the lowest
participation in more than twenty years.217 Although turnout is
typically lower in non-Presidential years, voter turnout had not
dropped below fifty percent since before 1986.218 When the
Alabama photo ID law was passed in 2011, the Alabama Secretary
of State estimated that the law would impact between 250,000 and
500,000 voters.219 Based on the voter turnout data, it appears that
the law indeed had this effect.220
Because Black voters are less likely than White voters to own
the required ID, the Alabama photo ID law has a disproportionate
impact on the ability of Black voters to cast ballots for candidates
of their choice. Twenty-five percent of Black voters lack the
required photo IDs, compared to only eight percent of White voters
213. See Complaint, supra note 11, at 16.
214. See supra notes 190–95 and accompanying text.
215. See United States. v. McGregor, 824 F. Supp. 2d 1339, 1345–47 (N.D. Ala.
2011).
216. Joanna S. Kao et al., Actual Election Turnout Far Lower Than Reported,
ALJAZEERA AM.: THE SCRUTINEER (Nov. 5, 2014), http://america.aljazeera.com/
blogs/scrutineer/2014/11/5/why-the-real-electionturnoutwasfarlowerthanreported.
html#alabama.
217. Mike Cason, Alabama Voter Turnout Only 41 Percent, Lowest in Decades,
AL.COM (Nov. 5, 2014), http://www.al.com/news/index.ssf/2014/11/alabama_voter_
turnout_only_41.html.
218. Id.
219. JEALOUS & HAYGOOD, supra note 4, at 9.
220. See Cason, supra note 217.
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who do not have the required ID.221 In addition, Black voters in
Alabama face greater barriers to obtaining the necessary IDs in
the aftermath of the closure of driver’s license offices across the
state.222 Selma, Alabama will retain its driver’s license office, but
nearly all of the surrounding Black Belt counties will not.223
Although the State maintains it is shutting down the driver’s
license offices as a cost-saving measure,224 closing driver’s license
offices in predominately Black counties will certainly have a
detrimental effect on the ability of Black voters to obtain the photo
IDs now required to vote.225 In sum, Alabama’s photo ID law has a
discriminatory effect on the ability of Black voters to cast ballots.
As such, the court should grant Plaintiffs’ motion for a permanent
injunction.
Conclusion
On May 17, 1957, eight years before the Voting Rights Act
was signed into law, Martin Luther King, Jr. spoke to a crowd of
civil rights activists saying, “Give us the ballot, and we will no
longer have to worry the federal government about our basic
rights.”226 Over fifty years after the passage of the Voting Rights
Act, however, minority voters in Alabama still face attacks on
their basic rights, specifically on the right to vote. In 2011, the
Alabama Legislature passed a measure requiring voters to present
photo ID at the polls.227 This measure was passed amidst a
racially charged legislative session and against a backdrop of fifty
years’ worth of attempts to implement racially discriminatory
legislation that was subsequently blocked by the federal
government under the preclearance requirements of Section 5 of
the Voting Rights Act.228 The United States District Court for the
Northern District of Alabama should act quickly in resolving this
issue and grant the requested relief: a declaratory judgment that
Alabama’s voter ID law is a violation of Section 2 of the Voting
Rights Act and a permanent injunction on its enforcement.229
221. BRENNAN CTR. FOR JUSTICE, supra note 140, at 3.
222. Berman, supra note 10.
223. Id.
224. Id.
225. See id. (noting many argue that this is exactly the type of voter
discrimination that Section 5 was meant to protect against).
226. MAY, supra note 17, at 54; King, supra note 1.
227. ALA. CODE § 17-9-30 (2011).
228. See supra Part V.
229. See Complaint, supra note 11, at 5; Plaintiffs’ Motion for a Preliminary
Injunction, supra note 158, at 1–2.